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In
the debate over comprehensive immigration reform, various policymakers
and business groups have suggested that Congress create a new or
expanded guestworker program to ensure a steady supply of foreign
workers for industries that rely on an abundance of cheap labor.

Congress
should look before it leaps. The current H-2 program, which provides
temporary farmworkers and non-farm laborers for a variety of U.S.
industries, is rife with labor and human rights violations committed by
employers who prey on a highly vulnerable workforce. It harms the
interests of U.S. workers, as well, by undercutting wages and working
conditions for those who labor at the lowest rungs of the economic
ladder. This program should not be expanded or used as a model for
immigration reform.

Under the current H-2 program overseen by the
U.S. Department of Labor (DOL), employers brought about 106,000
guestworkers into this country in 2011 — approximately 55,000 for
agricultural work and another 51,000 for jobs in forestry, seafood
processing, landscaping, construction and other non-agricultural
industries.

But far from being treated like “guests,” these
workers are systematically exploited and abused. Unlike U.S. citizens,
guestworkers do not enjoy the most fundamental protection of a
competitive labor market — the ability to change jobs if they are
mistreated. Instead, they are bound to the employers who “import” them.
If guestworkers complain about abuses, they face deportation,
blacklisting or other retaliation.

Bound to a single employer and without access to legal resources, guestworkers are routinely:

Cheated out of wages

Forced to mortgage their futures to obtain low-wage, temporary jobs

Held virtually captive by employers or labor brokers who seize their documents

Subjected to human trafficking and debt servitude

Forced to live in squalid conditions

Denied medical benefits for on-the-job injuries.

Former House Ways and Means Committee Chairman Charles Rangel put it this way: “This guestworker program’s the closest thing I’ve ever seen to slavery.”1
Congressman
Rangel’s conclusion is not mere hyperbole nor the first time such a
comparison has been made. Former DOL official Lee G. Williams described
the old “bracero” program — an earlier version of the guestworker
program that brought thousands of Mexican nationals to work in the
United States during and after World War II — as a system of “legalized
slavery.2 On paper, the bracero program had many significant
written legal protections, providing workers with what historian Cindy
Hahamovitch, an expert on guestworker programs, has called “the most
comprehensive farm labor contract in the history of American
agriculture.3 Nevertheless, the bracero workers were systematically lied to, cheated and “shamefully neglected.4

In
practice, there is little difference between the bracero program of
yesterday and today’s H-2 guestworker program. Federal law and DOL
regulations provide a few protections to H-2 guestworkers, but they
exist mainly on paper. Government enforcement of guestworker rights is
historically very weak. Private attorneys typically won’t take up their
cause. And non-agricultural workers in the program are not eligible for
federally funded legal services.

The H-2 guestworker system also
can be viewed as a modern-day system of indentured servitude. But unlike
European indentured servants of old, today’s guestworkers have no
prospect of becoming U.S. citizens. When their temporary work visas
expire, they must leave the United States. They are, in effect, the
disposable workers of the U.S. economy.

U.S. workers suffer as a
result of these flaws in the guestworker system. As long as employers in
low-wage industries can rely on an endless stream of vulnerable
guestworkers who lack basic labor protections, they will have little
incentive to hire U.S. workers or make jobs more appealing to domestic
workers by improving wages and working conditions. Not surprisingly,
many H-2 employers discriminate against U.S. workers, preferring to hire
guestworkers, even though they are required to certify that no domestic
workers are available to fill their jobs. In addition, it is
well-documented that wages for U.S. workers are depressed in industries
that rely heavily on guestworkers.

This report is based on
interviews with thousands of guestworkers, a review of the research on
guestworker programs, scores of legal cases and the experiences of legal
experts from around the country. The abuses described here are too
common to blame on a few “bad apple” employers. They are the foreseeable
outcomes of a system that treats foreign workers as commodities to be
imported as needed without affording them adequate legal safeguards, the
protections of the free market, or the opportunity to become full
members of society.

When the Southern Poverty Law Center
published the first version of this report in 2007, we recommended
reform or repeal of the H-2 program. Unfortunately, even after the
enactment of modest reforms in recent years, guestworker programs today
are still inherently abusive and unfair to both U.S. and foreign
workers.
In the past several years, the DOL has proposed two sets
of regulations to better protect non-agricultural H-2 workers – one
related to wage rate guarantees and one more comprehensive set of
regulations. These regulations also would better protect the jobs and
wages of U.S. workers. Unfortunately for workers, neither set of
regulations has gone into effect; employers have filed multiple lawsuits
challenging them, and Congress has effectively blocked implementation
of the new wage regulations. For workers, then, the abuses continue
unabated.

It is virtually impossible to create a guestworker
program for low-wage workers that does not involve systemic abuse. The
H-2 guestworker program should not be expanded in the name of
immigration reform and should not be the model for the future flow of
workers to this country. If the current H-2 program is allowed to
continue, it should be completely overhauled. Recommendations for doing
so appear at the end of this report.